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2010 - 2009

  • CA5 Affirms Denial Based on Crime of Domestic Violence(320 KB - 12/20/2010)
    The court held that the government has the burden to prove the domestic relationship for a crime of domestic violence by clear and convincing evidence, using the kind of evidence generally admissible before an immigration judge. (Bianco v. Holder, 10/19/10)AILA Doc. No. 10122032.
    AILA Doc. No. 10122032.
  • CA5 Remands CAT Claim for Reconsideration under “Willful Blindness” Standard(144 KB - 12/27/2010)
    The court found that the BIA applied an incorrect legal standard in its consideration of Petitioner’s CAT claim and remanded for reconsideration under the “actual knowledge” or “willful blindness” standard. (Hakim v. Holder, 12/13/10) AILA Doc. No. 10122747.
    AILA Doc. No. 10122747.
  • CA5 on BIA Jurisdiction over Appeal of Departed Alien(120 KB - 12/21/2010)
    8 CFR §1003.4, which states that an appeal is withdrawn if the alien departs "subsequent to the taking of an appeal, but prior to a decision,” does not cover departures after a BIA decision, but while a habeas is pending. (Rodriguez-Barajas v. Holder, 10/19/10) AILA Doc. No. 10122130.
    AILA Doc. No. 10122130.
  • CA5 En Banc Court on Reimbursements to H-2B Workers(312 KB - 12/20/2010)
    Over dissent, the en banc court held that the Fair Labor Standards Act does not require an employer to reimburse H-2B workers for recruitment expenses, visa fees, or inbound travel expenses incurred by the worker. (Castellanos-Contreras v. Decatur, 10/1/10) AILA Doc. No. 10122035.
    AILA Doc. No. 10122035.
  • CA5 Finds BIA Overstated Scope of Stipulation in Prior §212(c) Proceeding(335 KB - 12/15/2010)
    The court vacated the BIA’s decision and remanded, finding that the BIA’s conclusion that Petitioner had stipulated that a 2001 conviction would be excluded from coverage under a previously granted §212(c) waiver was incorrect. (Enriquez-Gutierrez v. Holder, 7/16/10) AILA Doc. No. 10121561.
    AILA Doc. No. 10121561.
  • CA5 Finds Passport Stamp Not Proof of Lawful Re-entry(87 KB - 12/14/2010)
    The court denied the petition, holding that the petitioner’s passport stamp did not establish lawful reentry and, therefore, there was no affirmative evidence to undermine the IO’s finding that the petitioner unlawfully re-entered. (Anderson v. Napolitano, 7/9/10) AILA Doc. No. 10121466.
    AILA Doc. No. 10121466.
  • CA5 Finds Parents Born in Former U.S. Territory Not USCs(112 KB - 12/14/2010)
    The court agreed with the reasoning of the Second, Third, and Ninth Circuits, and held that persons born in the Philippines during its status as a U.S. territory were not born “in the United States” under the 14th Amendment. (Nolos v. Holder, 7/9/10) AILA Doc. No. 10121464.
    AILA Doc. No. 10121464.
  • CA5 Distinguishes Employment Authorization and Lawful Immigration Status(288 KB - 9/29/2010)
    An automatic 240-day extension of employment authorization that accompanies an extension of nonimmigrant status under 8 CFR §274a.12(b)(20) does not provide lawful immigration status for purposes of INA §§245(c)(2) and 245(k)(2)(A). (Bokhari v. Holder, 9/29/10). AILA Doc. No. 10092930.
    AILA Doc. No. 10092930.
  • CA5 on Application of the Departure Bar(101 KB - 5/24/2010)
    CA5 held that the departure bar applies an alien who departs the US after receiving notice of his deportation proceeding, but before the proceeding is completed and the IJ enters the deportation order. (Toora v. Holder, 04/08/10). AILA Doc. No. 10052466.
    AILA Doc. No. 10052466.
  • CA5 Affirms Finding Agency’s Decision to Issue LEC Discretionary in U Visa Case(86 KB - 3/30/2010)
    CA5 affirmed district court grant of motion to dismiss in a U Visa case finding that a law enforcement agency’s decision to issue a “law enforcement certification” (LEC) is discretionary. (Orosco v. Napolitano, 3/2/10). AILA Doc. No. 10033062.
    AILA Doc. No. 10033062.
  • CA5 Finds State Felon-in-Possession Offense Conviction Constitutes Aggravated Felony(84 KB - 1/29/2010)
    CA5 affirmed denial of petition for cancellation of removal, finding that state felon-in-possession offenses need not have an interstate commerce element in order for the offense to be an offense “described in” 18 U.S.C. § 922(g)(1). (Hernandez v. Holder, 12/30/09). AILA Doc. No. 10012974.
    AILA Doc. No. 10012974.
  • CA5 on Establishing Required Period of Residency for Cancellation of Removal(89 KB - 1/29/2010)
    CA5 affirmed, finding petitioner ineligible for cancellation of removal based on failure to establish required period of residency under INA §240A(a). CA5 found the rationale of CA3 in Augustin persuasive in rejecting petitioner’s arguments. (Deus v. Holder, 12/23/09). AILA Doc. No. 10012970.
    AILA Doc. No. 10012970.
  • CA5 Finds BIA Incorrectly Applied De Novo Review to Deny Good-Faith Hardship Waiver(99 KB - 10/20/2009)
    The Court reverses the BIA decision to overturn the grant of a good-faith hardship waiver and remands. The Court finds that the BIA incorrectly applied de novo review to conclude that the marriage was not entered into in good faith. (Alvarado De Rodriguez v. Holder, 9/09/09). AILA Doc. No. 09102071.
    AILA Doc. No. 09102071.
  • CA5 Holds Parents’ Knowledge of Inadmissibility Imputed to Minor Children(75 KB - 10/5/2009)
    The Court held that Petitioner’s parents’ knowledge of her inadmissibility is imputed to Petitioner regardless of fact that Petitioner was a minor at the time of Parent’s fraud in the naturalization process. Thus, Petitioner was ineligible for a 212(k) waiver due to her imputed inadmissibility. (Mushtaq v. Holder, 09/23/09). AILA Doc. No. 09100568.
    AILA Doc. No. 09100568.
  • CA5 Reverses, Finds H-2B Employer is Not Liable for Relocation Costs Incurred by Workers(322 KB - 8/14/2009)
    The court held that H-2B workers are entitled to FLSA protection, but the employer is not required to reimburse them for recruitment fees, travel costs, or visa fees. This opinion was vacated upon grant of en banc review. (Castellanos-Contreras v. Decatur, 7/21/09). AILA Doc. No. 09081468.
    AILA Doc. No. 09081468.
  • CA5 Rejects Argument that Post-Departure Bar is Contrary to IIRIRA Provisions(65 KB - 8/13/2009)
    The court finds the petitioner may not rely on 8 U.S.C. § 1229a(c) to challenge the post-departure bar in 8 C.F.R. §1003.2(d), the latter of which the BIA reasonably interpreted as overriding its sua sponte authority to reconsider or reopen the petitioner’s case under 8 C.F.R. § 1003.2(a). Denies petition for review. (Ovalles v. Holder, 7/27/09). AILA Doc. No. 09081375.
    AILA Doc. No. 09081375.
  • CA5 Finds Abuse of Discretion in Reliance upon Adjudication Delay to Deny Continuance(52 KB - 7/17/2009)
    The court grants the petition, vacates and remands. Holds that the IJ abused his discretion by denying the foreign national’s motion for continuance based solely on the length of the delay in the adjudication of the I-130 petition of which he was the beneficiary. Remands for consideration of the Hashmi factors. (Wu v. Holder, 6/11/2009). AILA Doc. No. 09071762.
    AILA Doc. No. 09071762.
  • CA5 Remands Carachuri-Rosendo Following Supreme Court Ruling(326 KB - 7/10/2009)
    Following the Supreme Court’s reversal, the court granted the petition for review and remanded, finding Petitioner not ineligible for cancellation of removal based on a recidivist state misdemeanor drug possession conviction. (Carachuri-Rosendo v. Holder, 5/29/09). AILA Doc. No. 09071060.
    AILA Doc. No. 09071060.
  • CA5 Holds Petitioner is Ineligible to Apply for Cancellation of Removal Because of Controlled Substance Conviction(269 KB - 5/13/2009)
    The court denies the petition for review, holding that under Ford, a conviction for possession with intent to deliver cocaine in Texas is a felony under the Controlled Substance Act, thus the BIA did not err in holding that the petitioner is ineligible for cancellation of removal under 8 U.S.C.§1229b(a)(3). (Vasquez-Martinez v. Holder, 4/2/09). AILA Doc. No. 09051360.
    AILA Doc. No. 09051360.
  • CA5 Concludes Lack of Jurisdiction Due to Petitioner’s Failure to Exhaust Administrative Remedies(108 KB - 3/31/2009)
    The court concludes that that it does do not have the authority to excuse petitioner’s failure to exhaust, and that allowing “effective” exhaustion, rather than actual exhaustion, runs contrary to the purpose of the applicable statute. (Omari v. Holder, 3/4/09). AILA Doc. No. 09033167.
    AILA Doc. No. 09033167.
  • CA5 Addresses Receipt of Notice of Removal Hearing(80 KB - 3/12/2009)
    The court upholds the denial finding that the petitioner’s failure to receive actual notice of his removal hearing due to his neglect of his obligation to keep the immigration court apprised of his current mailing address does not mean that he “did not receive notice” under 8 U.S.C. § 1229a(b)(5)(C)(ii). (Gomez-Palacios v. Holder, 2/18/09). AILA Doc. No. 09031260.
    AILA Doc. No. 09031260.
  • CA5 Finds “Voluntary Departure” Inapplicable to Petitioner Ordered Removed in Absentia(264 KB - 3/11/2009)
    The court upholds the conviction of the petitioner who was indicted for illegal reentry after removal. Finds that the petitioner could not avoid prosecution by refusing to comply with the obligation to appear at removal proceedings by departing in advance of the removal order. (United States v. Ramirez-Carcamo, 2/17/09). AILA Doc. No. 09031170.
    AILA Doc. No. 09031170.
  • CA5 Finds Grant of 212(c) Waiver Does Not Expunge the Conviction Itself(36 KB - 2/9/2009)
    The court denies the petition to review, finding that a conviction that was the focus of a previous INA § 212(c) waiver can still be a ground of inadmissibility that precludes INA § 212(h) relief in further removal proceedings. It also rejects the petitioner’s equal protection claim. (De Hoyos v. Mukasey, 12/8/08). AILA Doc. No. 09020962.
    AILA Doc. No. 09020962.
  • CA5 on VWP Overstay and Defenses to Removal(228 KB - 1/15/2009)
    CA5 held that, since petitioner remained after expiration of her 90-day VWP stay, she was not entitled to contest her removal based on her marriage-based adjustment of status application (McCarthy v. Attorney General of the United States, 01/15/09). AILA Doc. No. 10051537.
    AILA Doc. No. 10051537.